In DUI cases in Florida, many people assume that the police car has a video camera that records the DUI investigation and arrest. The DUI video can be a good thing for a defendant if the defendant looks good on the video, and it shows that the police officer is exaggerating when he/she says the defendant was drunk. On the other hand, the DUI video can be problematic for the defendant if it shows the signs of impairment that the police officer indicated in his/her report and will testify to at the DUI trial.

As prevalent as video is these days, it should not be too much to ask for the police to record these DUI encounters. Because DUI arrests are so subjective (if the police officer thinks you are impaired from alcohol, you are probably getting arrested for DUI), it is important to have a DUI video so a jury can decide for themselves if the defendant was impaired rather than relying on the subjective memory of a police officer about an encounter that occurred months ago. Many police cars in the Jacksonville, Florida area do not have cameras. When we handle DUI cases with no video, we place the blame on the state since they have the burden of proof in DUI cases, and they have the capabilities to put video cameras in their police cars or bring a police car with a video camera to the scene.

In some cases, the police car has a video camera, but it does not record properly, it only records part of the DUI encounter or the video is lost. In a recent DUI case near Jacksonville, Florida, the police officer stopped the defendant and turned on his video camera. He went through the usual DUI investigation and ultimately arrested the defendant for driving under the influence of alcohol.

During the criminal case, the criminal defense lawyer requested a copy of the police officer’s video recording. When the criminal defense attorney viewed the DUI video, he saw that the video was useless because the police officer’s vehicle had condensation on the windshield which obscured the camera’s view. The police officer had left the air conditioning on in the vehicle causing the windshield to fog up. The police officer never checked the video camera during the DUI investigation to make sure it was properly recording the encounter, despite the fact that his department policy required him to do so.

Because the video was useless, the criminal defense lawyer filed a motion to dismiss the case. He argued that the police officer failed to follow department policy and basically destroyed critical evidence in the DUI case. The criminal judge agreed with the criminal defense attorney, but the appellate court reversed that decision. The appellate court said dismissing the case was too harsh a penalty where there did not appear to be bad faith on the part of the police officer. Instead, the appellate court told the criminal judge to consider less serious sanctions. For instance, the judge could prevent the state from introducing any evidence of the field sobriety examinations that were supposed to be recorded on video since the defendant could not use the video to refute the police officer’s testimony.

In addition to whatever sanctions the judge imposed, the criminal defense lawyer could always argue that the state did not meet its burden of proof in a DUI case since the police officer messed up the video. This is an argument we always use in DUI cases where the police officer did not have a video camera during the DUI encounter. It is a stronger argument when the police officer had the camera but did not follow police policy and corrupted the evidence.

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